Justice Kavanaugh and the Collegium: reflections on the increasing significance of judicial appointments

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judicial appointments, judicial supremacy, the supreme court

Justice Bret Kavanaugh’s confirmation hearings have certainly given us food for thought. The issues raised by the hearings have received some expert commentary, including Jack Balkin’s insightful post on ‘constitutional rot’ (here) and the series of posts on the Law and Political Economy blog (here). While certain aspects of the confirmation hearings were unique to the American political and constitutional experience, India too has a well-documented struggle with judicial appointments and recently underwent its own moment of introspection on a key judicial figure with the retirement of former Chief Justice Dipak Misra.

In this post I ask the question, why are the stakes for a seat on the constitutional court so high? The way constitutional courts are designed certainly provides an immediate set of answers. There are only nine judges on the United States supreme court and they enjoy lifetime appointments, allowing a single judge to impact the outcome of cases for several decades. However, even in India where the supreme court consists of thirty-one judges having limited terms, the court and government have struggled to see eye-to-eye on judicial appointments. The court has repeatedly struck down attempts to reform the ‘collegium’ system, where judges themselves decide who should be appointed to the supreme court. In return, the government has refused to confirm the appointment of certain appointments made by the ‘collegium’ to the supreme court. Just this week, the Chief Justice took up the issue of the government ‘selectively’ confirming judicial appointments (here). In this post, I argue that it is the conduct and role of the court that has raised the stakes of judicial appointments to boiling point.

The conduct of the court, intended to curtail governmental overreach, has come to include detailed matters of public policy. Further, the court has become a centre of political power, advancing political views on deeply divisive issues. This piece does not seek to make an argument against judicial review, nor does it advocate, in the words of Mark Tushnet, taking the constitution away from the courts. However, in a month of historic outcomes for the Indian supreme court, it advocates some circumspect on the high stature of the court.

The role of judicial review

Part III (Fundamental Rights) of the Indian constitution explicitly recognises that individuals can approach the court, and the court can strike down government action that is incompatible with the fundamental rights. By allowing a law to be struck down on the grounds that it is incompatible with a fundamental right, the constitution recognises that an individual’s political interest cannot be subsumed by the general interest. A person’s fundamental rights must therefore be given appropriate weight when measured against the interests of the community. Famously, in the words of Dworkin, rights act as “trumps” in certain situations. The powers of the court are not strictly limited to invalidating government action, the court can, for example, direct the government to take certain actions to ensure fundamental rights are upheld (by a writ of mandamus). However, in practice, the actions of the court far exceed this.

Take the recent example of the court’s involvement in the Coordinator of National Registration (NRC) in Assam. Article 11 of the constitution states that parliament will have the power to create laws for the “acquisition and termination of citizenship and all other matters relating to citizenship.” However, the court not only ‘supervised’ the procedure by which thousands of individuals were added and omitted to the list of potential citizens, but it also determined which documents could be used to make a claim to citizenship. After the draft NRC was published, the court required re-verification of ten percent of the names would be required, so that the court could be satisfied that the list was accurate. By dictating what documents could be used by an individual to prove they were a citizen (the evidentiary standard for citizenship), the court effectively determined when an individual is a citizen.

Even more worrying was that the court acted to the exclusion of other branches of the government. For example, the court noted,

 Having regard to the nature of the work that is involved in the process of upgrading the NRC, we direct the State Coordinator to submit a report to the Court. […] The above information will be laid before the Court by the State Coordinator without any consultation with any Authority whatsoever and without reverting to the State Government or any Authority in the Union Government.

As argued by the Attorney General, this exclusion of the governments hampers the task of the officers who must deal with the facts on the ground. The court also passed orders on when the draft had to be published, if the NRC officers were permitted to speak to the press, and whether they needed police protection. The Court’s excruciatingly detailed supervision was showcased when the state government argued that more time was required to complete the NRC because of local panchayat elections. The court noted,

we, however, permit the State Government to take the services of one Additional Deputy Commissioner in each district who may be currently engaged in the NRC work and deploy the said officer in each district for the work connected with the Panchayat Elections.

The court’s conduct vis-à-vis the NRC is not a case of judicial review where an individual’s rights are aggrieved by state action. Determining how and when officers should be stationed is a distributive choice on how the nation’s resources are utilised. In close to a decade of hearing the case, the court has never once referred to either the fundamental rights at stake or even the government action that is the subject of judicial review. When the attorney general argued that certain aspects of the case were best left to the executive, the court cited executive inaction as a justification for court supervision. The NRC is not an isolated case, the court has laid down and monitored the India’s forest policy for over two decades in the (still ongoing) writ petition Godavarman v Union of India. While the pitfalls associated with the court assuming such a role are not the subject of this piece, it is evident that the conduct of the court is no longer limited to judicial review. It can compel even a government that is not seeking to undermine constitutional provisions to expend resources on certain goals that the court designates as important. The court is not merely a ‘check on governmental power’, but itself a powerful centre for policy on how the country should be run.

The court as a centre of politics  

The court has also used its power to advanced political ideas on deeply divisive issues. The most recent example of this is the court’s decision in the Sabarimala case, where the court struck down the restriction on menstruating women entering the Sabarimala temple. To understand the political significance of the judgement, it is necessary to appreciate the centrality of secularism to the Indian constitution, so a quick recap is called for.

Article 25(1) reads,

Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.

Article 26 goes on to note that,

every religious denomination shall have the right […] to manage its own affairs in matters of religion 

This inherent tension in the constitution highlights both the disagreement that existed over the extent of State interference in religion and the requirement for continuity/ communal harmony, as well as the sharp contradictions that existed between the aspirational goals of the constitution and surrounding society. As Gary Jacobsohn notes, “So deep was religion’s penetration into Indian life, and so historically entwined was it in the configuration of a social structure that was by any reasonable standard, grossly unjust, that […] State intervention in the spiritual domain could not be constitutionally foreclosed.” Yet it is precisely this deep penetration of religion that leads to an inherent tension between the aspirational social-reform goals of the constitution and the requirement for communal harmony. The drafters of the constitution, operating in the shadow of partition, were acutely aware of the essential role of religion in social life. Thus, while social reform through State action was necessary, the acknowledgement of religious autonomy and permitting “culturally inflected interests” to be represented were essential to the maintenance of democracy in India.  Thus, Indian secularism required a balance between socio-economic reform of religion and tolerance of the deeply engrained and pluralistic practices existing across the country.

This is precisely the tension that the Sabarimala judgement brought to the forefront, down to the opinions of the judges. When Justice Malhotra argues for the validity of the ban on women entering the temple, she does so on grounds of respect for religious pluralism, while Justice Chandrachud gives voice to the argument that State intervention in certain situations is warranted. Of course, the rub lies in when such intervention is warranted, and who can ask for such intervention.

The religious sphere is certainly open to interference by the constitutional promise of social reform, but as Jacobsohn notes, “the legitimacy of this undertaking is at least partially dependent on preserving political space for religious identity.” By taking up the case, the court reduced this political space to the respondent’s lawyers in the courtroom. By striking down the ban, the court has struck down the practice of a religious group on the grounds of social reform at the behest of individuals who are not members of that religious group. This certainly alters the subtle constitutional balance between the social-reform goals of the constitution and the promise of communal harmony. As we have seen, the place of religion in Indian society is deeply contested. Yet the court’s seemingly insulated position often obscures the fact that the court is a vigorous and powerful participant in this contestation.

Conclusion

Given everything set out above, it is clear why the political class might seek to entrench allies in the judiciary, and consequently why, the judicial appointment process becomes contentious. Unlike in the United States, where judges are appointed by the executive branch and confirmed by the legislature, in India we have the collegium system, whereby senior judges appoint junior members of the court. While perhaps less partisan that the American court, the Indian court is no less political. As Anuj Bhuwania notes, the court’s PIL jurisdiction grants “blanket powers to judges to act as per their ideological beliefs in order to help the poor and promote distributive justice.” One would be hard pressed to find a politician who argue that his role differed from this role of the courts, except for the politician, blanket powers remain a forlorn dream.

This post sought to highlight why a place on the court is important. It is important because the court has endowed itself with vast powers and these powers are used to implement the policy and to drive the politics of the court.

The role of the court in its present iteration raises the age-old problem of political legitimacy. The court is an unelected body. As Jeremy Waldron notes, it is far easier to explain to someone who holds a contrary political opinion that, “Everyone’s votes were counted, and your side got fewer votes” than it is to say, your principled argument lost 4-1 on the constitutional bench. Can one approach the thousands of protestors at Sabarimala with the majority opinion in hand and expect immediate acceptance? What we are truly concerned about is the court exercising its expansive powers without the legitimate authority to do so. The protests against Justice Kavanaugh no doubt in part stemmed from the fact that this one man would have the power to decide whether millions of women could abort unwanted pregnancies or not. To ask if such a system is desirable is to ask where the legitimate authority to govern us comes from. Is it the constitution, the democratic process, a learned judge, or some combination of them all? Until then, we should prepare ourselves for the next round of high stakes judge selection.

The Meaning and Limits of Democracy under the Constitution: Perspective on NCT of Delhi v Union of India

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Article 239, constitutional interpretation, democracy

On this blog (here) we recently analysed the Supreme Court’s verdict in the NCT of Delhi v Union of India. Now that the dust has settled on the judgement and its immediate outcomes, it is worth considering where the judgement stands in our constitutional jurisprudence, the idea of democracy under the constitution.

The crux of the dispute in NCT of Delhi came down to an interpretation of Article 239AA. The article creates a legislature directly elected from the constituencies of Delhi, led by a council of ministers that are “collectively responsible” to the legislature This council will “aid and advise” the Lieutenant Governor (LG). Article 239AA(4) stipulates that in the event of a disagreement between the council and the LG “on any matter”, the LG can refer the disagreement to the President. As we know, the Supreme Court held that the “aid and advice” of the council of ministers is binding on the LG, whose express approval is not required for every initiative of the Delhi government. The LG can disagree on certain matters (we will discuss this later). In interpreting Article 239AA, the Supreme Court relied on certain “principles” that it used to justify its interpretation, chief amongst these was democracy.

In this post, I seek to examine the principle of democracy espoused by the court. The court’s judgement provides a defence of democracy that stems from the political legitimacy created by every individual having a vote, and thus a say in the running of government. The court uses this foundational principle to outline what it means to be democratic within our constitutional framework. Ultimately, in interpreting when the LG can disagree with the council of ministers, the court also highlights the limits of the political legitimacy that voting creates. In other words, the democratic nature of the constitution requires all citizens to be able to influence government. The views of the citizens form the inputs of the governmental decision-making process, and all views must be heard for the decisions of government to be legitimate. However, sometimes, the needs of the citizens must be balanced with the need for the continued existence of the government itself.

The political legitimacy of democracy

Broadly speaking, the constitution uses two methods to ensure the State does not dominate its citizens: (1) by ensuring government policies treat all citizens with equal respect; and (2) ensuring all views are heard when determining government policies. An example of the former would be a fundamental rights challenge under Article 14, while an example of the latter would be preserving democracy, free speech, and free and fair elections. It is this second limb that the court focuses on in NCT of Delhi judgement.

Without making the theoretical case for democracy, some context of the republican notion of democracy is necessary to appreciate the court’s observations. In a pluralistic society, the spectrum of ideas and needs of the citizenry is immensely wide. However, some amount of convergence or coordination is necessary to decide how society should function. If we acknowledge that all citizens are autonomous moral agents worthy of equal respect, then the decision-making procedure must respect the ideas and needs of all agents equally. Democracy through voting, permits exactly this. In the words of the political philosopher Richard Bellamy, it offers a process that “acknowledges the equal moral right of all citizens to be regarded as autonomous reasoners”. In the NCT of Delhi decision J. Misra espouses exactly this justification for democracy:

“The cogent factors for constituting the representative form of government are that all citizens are regarded as equal and the vote of all citizens, which is the source of governing power, is assigned equal weight. In this sense, the views of all citizens carry the same strength and no one can impose his/her views on others” (⁋50)

Similarly, when outlining the underlying principles of the Constitution, J. Chandrachud notes, “One of the essential features of constitutional morality, thus, is the ability and commitment to arrive at decisions on important issues consensually. It requires that “despite all differences we are part of a common deliberative enterprise” (⁋9). It is crucial to understand that arriving at decisions consensually does not necessarily mean everybody agrees with the outcome of the decision, rather that everybody acknowledges the inherent legitimacy of the process used to make the decision. What the court is recognising is that the equal respect for all views grants legitimacy to the decisions taken by democratic means. Irrespective of whether you agree with the decision or not, it is the outcome of a process in which you had as much of a say as the next person (we will examine limits of this later).

A second crucial facet of democracy that the court highlights is political accountability, or how reflexive the State is to the needs of the citizens. J. Chandrachud defines accountability as, “the criterion of responsiveness to changes in circumstances that alter citizen needs and abilities… In other words, accountability refers to the extent to which actual policies and their implementation coincide with a normative ideal in terms of what they ought to be.” (⁋35) If the role of democratic voting is to determine the “needs and abilities” of the citizens in a society at any given time, then there must exist a direct link between those who vote and those frame laws. This accountability allows citizens to inform political representatives of their “needs and abilities” and most importantly, reject those representatives who do not frame laws that track the citizens “needs and abilities”. Obvious examples of this are not re-electing a representative, or at an indirect level, a ‘no-confidence motion’ against the government. But as we shall see, the principle of accountability is far more widespread. As J. Chandrachud notes, “The ability of citizens to participate in the formation of governments and to expect accountable and responsive government constitutes the backbone of a free society.” (⁋11)

The democratic credentials of the council of ministers and the LG

Recall that Article 239AA creates a legislature elected from the territorial constituencies of Delhi, which is led by a council of ministers. By contrast, the LG is appointed by President on the advice of the Central Government. Also recall that the High Court ruled that all initiatives of the Delhi government needed the express approval of the LG. This conclusion of the High Court directly contradicts the view of democracy espoused by the court, as the LG neither represents the “needs and abilities” of the citizens of Delhi, nor is he accountable to these citizens. However, the LG is the appointee of a body that is answerable to the people, the central government. If the power exercised by every appointed official was considered unconstitutional on the ground that they were not elected or directly answerable to the people, the government would come to a halt. The court’s final holding is therefore not that the LG is undemocratic, rather than the council of ministers have stronger democratic credentials which cause power to vest in them.

The court argues that no power under the Constitution is conferred unless it is ultimately accountable to the people. How true this is, given the recent antics by governors is a debate for another day, but the court states,

“The omnipotence of the President and of the Governor at State level — is euphemistically inscribed in the pages of our Fundamental Law with the obvious intent that even where express conferment of power or functions is written into the articles, such business has to be disposed of decisively by the Ministry answerable to the Legislature and through it vicariously to the people, thus vindicating our democracy instead of surrendering it to a single summit soul.”

In other words, where constitution vests power in two posts, there exists a presumption in favour of the power ultimately vesting in and being exercised by individuals or offices directly responsible to the citizens. This presumption is based on two parliamentary doctrines that are based on the twin ideas of all voices being heard and political accountability. These are the doctrines of “aid and advice” and “collective” responsibility.

Aid and Advice

The first constitutional doctrine discussed by the court is that of “aid and advice”. The constitution stipulates that the President, Governor, and at the level of the Union Territory, the LG, shall act on the “aid and advice” of their respective council of ministers. The question in NCT of Delhi was whether the “aid and advice” of the Delhi council of ministers was binding on the LG. A detailed discussion on this doctrine can be found in an earlier post on the High Court judgement (here). However, in the context of our current discussion on democracy it is important to understand the role the doctrine plays in a parliamentary democracy.

J. Chandrachud notes, “The doctrine of aid and advice enhances accountability and responsive government – besides representative government – by ensuring that the real authority to take decisions resides in the Council of Ministers, which owes ultimate responsibility to the people, through a legislature to whom the Council is responsible.” (⁋43). To ensure that the unelected official in whom the Constitution appears to vest power (e.g. the President, or the LG) acts in accordance with the “needs and abilities” of the citizens they govern, this unelected official is bound to act in accordance the “aid and advice” of elected individuals. The legitimacy of the “aid and advice” of these elected officials comes from the fact that all citizens had an equal chance to choose these elected officials based on the interests the officials represented. (This raises the question, why have an LG at all? Which I address in the last section of the post.)

Collective Responsibility

Collective responsibility means two things: (1) that every minister in government is responsible for her ministry; and (2) all ministers in parliament are collectively responsible for the policies of the government as a whole (the government here is not the entire legislature, but rather the ruling party or coalition). Thus, each minister is vicariously liable for the actions of all the other ministers in government. The reason why parliamentary democracy requires the principle of collective responsibility is best articulated by J. Chandrachud when he notes, “Collective responsibility governs the democratic process, as it makes a government liable for every act it does.” (⁋37) It makes the government, “continuously accountable for its actions, so that it always faces the possibility that a major mistake may result in a withdrawal of Parliamentary support” (⁋33).

By making the entire government responsible for the act of each minister, collective responsibility greatly enhances the liability of government. A single wayward act of a minister can potentially threaten a government’s rule, prompting a no-confidence motion. This results in both intra-governmental accountability, and accountability to the direct representatives of the citizens. As J. Chandrachud concludes, “Collective responsibility, as a constitutional doctrine, ensures accountability to the sovereign will of the people who elect the members of the legislature.” (⁋50).  Similarly, J. Mishra states, “the ultimate say in all matters shall vest with the representative Government who are responsible to give effect to the wishes of the citizens and effectively address their concerns.” (⁋267)

This highlights the second aspect of democracy discussed above, that of political accountability. It is not sufficient that an office of power is vicariously answerable to the people. Democracy demands a direct nexus between those in power and the citizen’s whose needs and values they represent. The Central Government that appoints the LG represents the needs of the entire country, of which Delhi is a minute fraction. If the constitution demands democratic government for Delhi, it necessarily requires a government that is directly accountable to the citizens of Delhi. The council of ministers possess this accountability, and the LG does not.

The limits of democracy

This post has so far focussed on the ­legitimacy derived from the inputs to the democratic decision-making process. Democracy ensures that all citizens can voice their views equally prior to taking any decision that governs all citizens. However, as has been noted before on this blog (here) we also care about the outcomes of the democratic decision-making process. The discussion for whether democracy needs counter-majoritarian restrains is beyond the scope of this post. However, the NCT of Delhi judgement is notable in delineating the limits of political legitimacy within the constitutional framework.

This conflict is best highlighted by J. Chandrachud when he notes,

“The NCT represents the aspirations of the residents of its territory. But it embodies, in its character as a capital city the political symbolism underlying national governance. The circumstances pertaining to the governance of the NCT may have a direct and immediate impact upon the collective welfare of the nation.” (⁋55)

The conflict touched upon by the court is not merely about the distribution of powers between the elected government of Delhi and the Central Government. It is highlighting that for all the political legitimacy that democratic inputs generate, there exist certain areas of debate where the democratic process cannot be allowed to reign supreme. A common example of this is the denial of referendums and even popular government to areas that threaten to separate from the union. The court is alluding to the fact that the entire constitutional scheme is situated in a State-centric view of the world, and where the idea of democracy may be used to question the existence of the state itself, a delicate balance must be struck. J. Chandrachud articulately captures this tension when he notes, “Each of the two principles must be given adequate weight in producing a result which promotes the basic constitutional values of participatory democracy, while at the same time preserving fundamental concerns in the secure governance of the nation.” (⁋55).  Despite Article 239AA granting a democratically elected government to Delhi, Delhi is still of crucial importance to India as a State, practically and symbolically. Thus, there are limits to the legitimacy generated by granting each citizen of Delhi a vote.

Conclusion

Earlier we noted that ensuring the voice of all citizens influences the government’s decisions, and the government is accountable to this influence, is a crucial method of restraining governmental power. Thus, the decision in NCT of Delhi should be considered on par with any landmark fundamental rights case in terms of securing freedom. By highlighting democracy as an underlying principle of the constitution and utilising it to interpret a provision that enabled representative governance, the court has restrained the ability of the government (in this case the Central Government) to disregard the “needs and abilities” of the people. How the principles of the equality that voting is founded on and accountability that parliamentary processes create will influence future decisions of the court will be interesting to see. For example, would the anti-defection law survive a basic structure challenge based on the principles articulated here? More realistically, one hopes that in future cases of electoral reforms/restrictions, campaign finance and parliamentary affairs, the court does not forget these principles.